Harmonised Protection Regulations Should Supplement the EU’s Patent System.

The EU’s unitary patent system comes into force on 1 June. This will create a new patent court for registering patents in Europe.  This has been made possible by Germany depositing the ratification document for convening the Unified Patent Court. This means that the patent system can now be fully applied. It has been provisionally applied in 17 member states since 19 January 2022.

The European Commission took a further step by presenting its legislative package that provides better intellectual property protection on 17 April. It aims to standardise the fragmented patent system, make it more efficient and provide better protection for innovations. The package consists of three proposed regulations.

Greater transparency for standard essential patents

The SEPs (Standard Essential Patents) proposal aims to better protect technologies that are indispensable in specific industries. Well-known examples here are technologies such as WLAN, Bluetooth or those used for transferring video data. Relevant companies would not be able to stay in the market without them. The EU’s proposal aims to ensure that both EU SEP holders and EU users are innovative, competitive in both the single and global markets and that they make the latest standardised technologies available to consumers at fair prices. A registration office for these patents as well as a competence centre are to be established at the European Union Intellectual Property Office (EUIPO) in order to create more transparency and to support the companies. Arbitration is intended to replace costly litigation.

Harmonising compulsory licensing

The compulsory licensing proposal aims to replace the existing coexistence of 27 national compulsory licensing systems and to introduce an instrument that will ensure that important patented products and technologies can still be used throughout the EU in the event of a crisis. This will apply in the event that a voluntary agreement covering the use of a patent against payment is not concluded. Most recently, in connection with the tough struggle at the World Trade Organisation level over the "patent waiver" - albeit free of charge - for Corona vaccines and therapeutics, it has once again become clear how different the views are about compulsory licences, which was what the EU submitted as a negotiating alternative during the discussions. The EC is now taking a step forward by proposing a regulation for its own area.

Protection certificates: One registration, one examination

The third proposal in the legislative package will introduce a standardised SPC (Single Supplementary Protection Certificate) valid at EU level. A centralised examination procedure will also be established and implemented by the EUIPO in conjunction with its national equivalents. These SPCs - which have so far only been awarded nationally - will allow the term of a patent for human or veterinary medicinal products as well as plant protection products to be extended by up to five years. The SPC can be extended by another 6 months in order to provide a special incentive for developing paediatric medicinal products. The SPCs are intended to compensate for the sometimes long duration of the market authorisation process for these products. This proposal will enable the EC to raise the SPC application process up to European level and this will counteract the different handling processes used by the member states. However, this proposal will not change the length of the additional protection periods gained through an SPC. This is also in line with the DSV's position that was submitted to the EC last spring as part of the SPCs impact assessment